United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 17, 2018 Decided March 5, 2019

No. 17-1221

NOVATO HEALTHCARE CENTER,PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,RESPONDENT

Consolidated with 17-1232

On Petition for Review and Cross-Application for Enforcement of an Order of

the National Labor Relations Board

Ryan N. Parsons argued the cause for petitioner. With himon the briefs was Kamran Mirrafati.

Rebecca J. Johnston, Attorney, National Labor RelationsBoard, argued the cause for respondent. With her on the briefwere Peter B. Robb, General Counsel, John W. Kyle, DeputyGeneral Counsel, Linda Dreeben, Deputy Associate GeneralCounsel, and Jill A. Griffin, Supervisory Attorney.

Before: GARLAND, Chief Judge, GRIFFITH, Circuit Judge,and EDWARDS, Senior Circuit Judge.

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Opinion for the Court filed by Chief Judge GARLAND.

GARLAND, Chief Judge: In 1992, Vincent Gambini taughta master class in cross-examination. Trial counsel for the1

National Labor Relations Board and the National Union ofHealthcare Workers apparently paid attention. In this petitionfor review, Novato Healthcare Center challenges the Board’sfinding that it committed an unfair labor practice by firing fourunion organizers two days before a union election. As Novatoacknowledges, its “entire case turns on whether the testimony”of one of its supervisors “should be credited.” Reply Br. 5. Butthe Board determined that the testimony should not be credited,and trial counsel’s cross-examination of the supervisor providessubstantial evidence to support that determination. For thisreason, and because the other findings that Novato challengesare also supported by substantial evidence, we deny Novato’spetition for review and grant the Board’s cross-application forenforcement.

I

Novato operates a skilled-nursing facility in California thatcares for about 170 patients. On September 16, 2015, theNational Union of Healthcare Workers filed a petition with theNational Labor Relations Board (NLRB) to represent a unit ofNovato employees. Among the employees leading the union-organizing effort were Narvius Metellus, Rolando Bernales,Arlene Waters Brown, and Angel Sabelino. All four attendedunion meetings, collected show-of-interest signatures, worepro-union buttons and lanyards, distributed union regalia, andpassed out flyers promoting the union.

See MY COUSIN VINNY (Twentieth Century Fox 1992) (cross-1

examination of Mr. Tipton); infra note 5.

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Novato’s management undertook its own union-oppositioncampaign. Although Novato supervisors did not generally worknight shifts, facility administrator Darron Treude askedsupervisors to volunteer for those shifts so they could provideunion-opposition materials to employees and answer theirquestions. CPEhr, an outside consulting group that providesemployment law advice, spearheaded the union-oppositioncampaign on behalf of Novato.

On October 4, 2015, ten days before the October 14-15representation election, Novato supervisor Gay Rochaapproached employee Metellus at approximately 6:30 a.m. Rocha asked Metellus, who was a relatively new employee, howhe planned to vote in the upcoming election. When Metellusresponded that he planned to vote in favor of the union, Rochatold him that doing so would have implications for his pay andthat the union could potentially take a portion of his paycheck. Metellus responded that this would not be a problem for him.

On October 6-7, Metellus, Bernales, Brown, and Sabelinoworked the night shift together at Station 4, one of four nursingstations at the Novato facility. During that shift, anotheremployee, Gonzala Rodriguez, whose union views were andremain unknown, worked at Station 1. At Novato, night-shiftemployees work from 11:00 p.m. to 7:00 or 7:30 a.m.,depending on their positions. During a shift, employees areallowed two 10-minute rest breaks. In addition, they areallowed one 30-minute meal break. Employees routinely sleepduring these breaks, which they are permitted to take at anytime, so long as at least one station member is available. SeeNovato Healthcare Ctr., 365 N.L.R.B. No. 137, at 7 (Sept. 29,2017) (ALJ Op.).

Novato supervisor Teresa Gilman also worked the nightshift on October 6-7, as part of Novato’s union-opposition

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campaign. According to Gilman’s testimony at the subsequentunfair labor practices hearing, she arrived at the Novato facilitysome time after 3:50 a.m. on October 7. After completing anumber of tasks, Gilman began making the rounds of thenursing stations, starting with Station 4.

Gilman testified that, when she arrived at Station 4, she sawall four employees sleeping. She said she stood in front of theemployees for “several seconds to up to a minute” to see if theywould wake up. Id. at 11. According to Gilman, they did not.

Gilman then proceeded to Stations 3 and 1. She testified2

that, at Station 1, she saw another employee, Rodriguez,sleeping. According to Gilman, Rodriguez was sitting in a chairoutside a patient’s room with her head down on a table.

On Gilman’s second and third rounds through Stations 4, 3,and 1, she said she saw all five employees still asleep in thesame positions in which she had last seen them. On her thirdvisit to Station 4, Gilman used her cell phone to take aphotograph of two of the four employees, Brown and Sabelino. The photo shows the two with their eyes closed. Although thephotograph initially did not have a timestamp, Gilman laterproduced a version with a timestamp of 4:21 a.m.

Timing, in this case, is (almost) everything. Gilmantestified that at least 15 to 20 minutes passed from the time shefirst arrived at Station 4 and saw the employees sleeping, to thetime she took the photograph of the two sleeping employees. Iftrue, this meant that at least two of the Station 4 employees hadbeen sleeping considerably longer than their permitted 10-minute breaks.

She did not stop at Station 2 because it was “an alarmed unit2

and alarms would go off.” J.A. 443 (Gilman Test.).

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Gilman then went on to revisit Station 1. She noticed thatRodriguez was still sleeping and informed the charge nurse, whowoke her up. Gilman estimated that Rodriguez had been asleepfor at least 15 to 20 minutes as well. By the time Gilmanreturned to Station 4 for a fourth time, all four employees therewere awake.

On the morning of October 7, Gilman sent administratorTreude the photograph and soon thereafter informed him that thefive employees had been asleep for 15 to 20 minutes. Treudesuspended all five and initiated an investigation. Novato’soutside counsel, Richard Albert, as well as its outside consultinggroup, CPEhr, provided input regarding disciplinary options. Specifically, in an email to Treude and CPEhr, Albertrecommended that Treude terminate all five employees. Although Albert recognized that Rodriguez was “a bit of adifferent story” because her “Charge Nurse appears to havetolerated her sleeping,” he still recommended her termination:“[G]iving her lesser discipline, in this situation, sends the wrongmessage to the NLRB or a judge looking at this. It is possiblethat [the] NLRB or judge could view her situation as being lessserious than the others, but I would rather have you take thatrisk, than the risk that letting her remain employed somehowdilutes our arguments with the other 4.” Email from Albert toTreude, et al. (Oct. 10, 2015) (J.A. 529).

On October 12, two days before the scheduled election,Treude fired all five employees for sleeping on duty. OnOctober 14 and 15, the NLRB conducted the election, which theunion won.

Thereafter, the union charged Novato with committingunfair labor practices, and the NLRB’s General Counsel issueda complaint. Gilman testified as recounted above. The twoStation 4 employees captured in the photograph, Brown and

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Sabelino, acknowledged that they had slept, but said they did soonly during their permitted 10-minute breaks. Bernales testifiedthat, although he had rested during his allowed meal break, hedid not sleep after returning to Station 4 at 4:00 a.m. Metellustestified that he did not sleep at all during that shift. Rodriguez,the Station 1 employee, did not testify.

Following a multi-day hearing, the ALJ found that Novatoviolated the National Labor Relations Act (NLRA) bysuspending and firing the five employees, and also violated theAct when Rocha questioned Metellus about how he planned tovote. 365 N.L.R.B. No. 137, at 18. The Board affirmed theALJ’s rulings, findings, credibility determinations, andconclusions, with minor modifications. Id. at 1.

Novato has now filed a petition for review in this court, andthe NLRB has filed a cross-application for enforcement of itsorder. Under the applicable standard of review, we must upholdthe judgment of the Board unless its findings are unsupported bysubstantial evidence, or it acted arbitrarily or otherwise erred inapplying established law to the facts of the case. SpurlinoMaterials, LLC v. NLRB, 805 F.3d 1131, 1136 (D.C. Cir. 2015);Bally’s Park Place, Inc. v. NLRB, 646 F.3d 929, 935 (D.C. Cir.2011); see 29 U.S.C. § 160(f) (providing that the Board’sfindings of fact are “conclusive” if “supported by substantialevidence on the record considered as a whole”).

II

We begin with Novato’s challenge to the Board’s findingthat Novato violated Section 8(a)(1) and (3) of the NLRA, 29U.S.C. § 158(a)(1), (3), by suspending and then firing the fouremployees at Station 4. It is on this issue that the informationelicited by cross-examination is important.

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An employer violates Section 8(a)(1) and (3) by suspendingor discharging an employee for engaging in protected unionactivity. NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 397-98(1983); Metro. Edison Co. v. NLRB, 460 U.S. 693, 698 n.4(1983); Tasty Baking Co. v. NLRB, 254 F.3d 114, 125 (D.C. Cir.2001). The Board employs the judicially approved Wright Line3

test when reviewing a claim that an employer discharged (ortook other disciplinary action against) an employee for protectedconduct. See Wright Line, 251 N.L.R.B. 1083, 1089 (1980); seealso Transp. Mgmt. Corp., 462 U.S. at 401-03 (approving theWright Line test); Bally’s Park Place, 646 F.3d at 935. “Underthat test, the General Counsel must first ‘make a prima facieshowing sufficient to support the inference that protected . . .conduct was a motivating factor in the [discharge].’” TastyBaking, 254 F.3d at 125 (quoting TIC-The Indus. Co. Se. v.NLRB, 126 F.3d 334, 337 (D.C. Cir. 1997)). “Once a prima faciecase has been established, the burden [of persuasion] shifts tothe company to show that it would have taken the same actionin the absence of the unlawful motive.” Id. at 126; see Bally’sPark Place, 646 F.3d at 935.

In the proceedings below, Novato disputed the unfair laborpractice charges at both steps of the Wright Line test. Withrespect to the first step, the ALJ, affirmed by the Board, readily

Section 7 of the NLRA guarantees employees the “right to3

self-organization, to form, join, or assist labor organizations, . . . andto engage in other concerted activities for the purpose of collectivebargaining or other mutual aid or protection.” 29 U.S.C. § 157. Section 8(a)(1) provides that “[i]t shall be an unfair labor practice foran employer . . . to interfere with, restrain, or coerce employees in theexercise of the rights guaranteed” in Section 7. Id. § 158(a)(1). AndSection 8(a)(3) prohibits “discrimination in regard to . . . tenure ofemployment . . . to . . . discourage membership in any labororganization.” Id. § 158(a)(3).

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found sufficient evidence to support the inference that anti-unionanimus was a motivating factor in the suspension and dischargeof the Station 4 employees. The “record show[ed],” the ALJrecounted, that the four employees “visibly supported the unionorganizing campaign by [inter alia] wearing lanyards andbuttons, passing out flyers, and getting employees to sign [up]for a showing of interest,” and that “their actions were visiblefrom Treude’s office.” 365 N.L.R.B. No. 137, at 16. In light ofthose facts, the ALJ rejected, as “disingenuous,” Novato’s“claims that its supervisors were unaware of the employees’union activity.” Id. She specifically declined to “creditGilman’s testimony that she did not know whether the allegedlysleeping employees were union supporters since she did notnotice any union lanyards or pins,” because Gilman “alsotestified in incredible detail as to how the employees werepositioned and claimed to have stood in front of them for sometime.” Id. In addition, the ALJ noted that the “suspensions anddischarges occurred only a couple weeks after the filing of therepresentation petition and only 1 week prior to therepresentation election.” Id. And she also noted that Novato’sanimus was “demonstrated by its contemporaneous 8(a)(1)violation[]”: Rocha’s unlawful interrogation of Metellus abouthis preference in the representation election. Id.

The ALJ found additional support for the inference ofanimus and discriminatory motivation in the fact that Novato“acted disparately”: “No other employees had been suspendedand discharged for the same or similar allegations.” Id. at 17. She observed that, “[i]n a similar situation in 2009 where anemployee allegedly slept on duty, [Novato] did not disciplinethis employee even though there too was a picture of thesleeping employee.” Id. The ALJ further noted that, althoughjust one week “prior to the events at issue in [t]his matter, oneof [Novato’s] supervisors also reported employees sleepingduring the night shift[,] . . . Treude failed to investigate or follow

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up on this allegation.” Id. Instead, “Treude singularly focusedon Metellus, Bernales, Brown, and Sabelino and one can onlyconclude it was due to their union activity.” Id.

In this court, Novato does “not contest the Board’s findingof an unlawful motivation in discharging the employees atissue.” Reply Br. 2; Oral Arg. at 1:50-2:33. Rather, Novato’ssole contention is that it met its burden of proof under thesecond step of the Wright Line test by proving “that it wouldhave taken the same action absent the improper motive.” ReplyBr. 4. As it argued below, Novato maintains here that it wouldhave terminated the four regardless of their union supportbecause of the “brazen” nature of their conduct in sleeping onduty. 365 N.L.R.B. No. 137, at 17 (ALJ Op.).

The ALJ, affirmed by the Board, rejected Novato’s WrightLine defense. Id.; see id. at 1 nn. 1, 2 (Board Op.). She rejectedTreude’s testimony in its entirety for multiple reasons, includinghis demeanor, id. at 5 (ALJ Op.) (“evasive[], . . . vague andcontradictory”), and his disparate treatment of earlier sleeping-on-the-job claims, id. at 17. As discussed below, shespecifically discredited Gilman’s testimony that she saw the fouremployees sleeping on duty. Id. at 5. Instead, she credited in itsentirety the testimony of Brown, and in relevant part thetestimony of Sabelino, both of whom acknowledged that theyhad slept but said they did so only during their permitted10-minute breaks. Id. In addition, the ALJ credited the4

testimony of Bernales, who testified that the only rest he tookwas during his permitted 30-minute meal break prior to 4:00a.m., and of Metellus, who testified that he did not sleep at allduring the shift. Id. at 5-6.

The ALJ further credited Brown’s testimony that she ensured4

that Metellus and Bernales were both awake and working when shewent to sleep on her break. 365 N.L.R.B. No. 137, at 5.

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Novato acknowledges that its Step 2 Wright Line argument-- that it would have discharged the four employees regardlessof any anti-union motive because they were sleeping on dutywell past their permitted rest periods -- turns entirely on“whether the testimony of Gilman should be credited.” ReplyBr. 5; Oral Arg. at 2:40-3:00. Novato’s success thereforedepends on persuading us that the ALJ’s conclusions aboutGilman’s credibility were unsupported. And that presentsNovato with a difficult task because “we do not reverse theBoard’s adoption of an ALJ’s credibility determinations unless. . . those determinations are ‘hopelessly incredible,’‘self-contradictory,’ or ‘patently unsupportable.’” ShamrockFoods Co. v. NLRB, 346 F.3d 1130, 1134 (D.C. Cir. 2003)(quoting Cadbury Beverages, Inc. v. NLRB, 160 F.3d 24, 28(D.C. Cir. 1998)).

Novato insists that it is up to this difficult task becausephotographic evidence “fully corroborated” Gilman’s testimony“that the Unit 4 employees were sleeping for 20 minutes.” Reply Br. 6, 5. That itself is an overstatement of Gilman’sactual testimony, which was that the employees were sleeping“at least 15 to 20 minutes.” J.A. 456 (Gilman Test.). Be that asit may, Novato’s argument here is in line with the position ittook before the ALJ:

Immediately after the October 7 incident, Gilmanreported that she began her rounding at approximately4:00 am on October 7, and took the photo of Brownand Sabelino somewhere around 15-20 minutes later. At the time she made these representations, the photoGilman had taken had no time stamp on it. . . . Onceshe [downloaded a software update on her smartphone], a time stamp appeared indicating that thepicture was taken at 4:21 am . . . . This indisputabletime stamp evidence is totally consistent with Gilman’s

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testimony as well as her prior statements about theevents of October 7 -- she arrived on Unit 4 at orslightly after 4:00 am, and took the photo at least15-20 minutes later.

Novato Post-Hearing Br. 15 (emphasis added). Like the ALJ,we will assume that the 4:21 a.m. timestamp was accurate,notwithstanding some doubts in that regard. See 365 N.L.R.B.No. 137, at 5, 12 n.27.

And here is where the lesson Vinny Gambini taught comesinto play. A key issue in the murder trial of Vinny’s cousin,Bill, was how many minutes had passed between the timewitness Sam Tipton saw Bill enter the Sac-O-Suds conveniencestore and the time he heard a gunshot. On direct examination,Tipton testified that he was sure only five minutes had passedbecause he saw Bill go into the store as he (Tipton) startedmaking breakfast, and the shot rang out just as his breakfast wasready to eat. On cross-examination, Vinny elicited Tipton’sbreakfast-making process. By the end of the cross, it was clearthat Tipton could not have cooked his breakfast of eggs and gritsin just five minutes.5

The cross-examination proceeded as follows:5

Q. Well, how much time was they in the store?A. Five minutes.Q. Five minutes? Are you sure, did you look at your watch?A. No.Q. Oh, oh, I’m sorry, you testified earlier that the boys went into the store, and you had just begun to make breakfast, youwere just ready to eat, and you heard a gunshot. . . . Soobviously it takes you five minutes to make breakfast.A. That’s right. . . .Q. Do you remember what you had?A. Eggs and grits.

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So, too, here. Gilman testified that the only time she saw aclock on the morning of October 7 was when she stopped at astop sign, three blocks from work, and noticed that her car’sclock showed it was 3:50 a.m. On cross-examination, sheinitially claimed that it took her only 5 to 10 minutes to get fromthat stop sign to Station 4, where she said she first encounteredthe four sleeping employees. J.A. 490 (Gilman Test.). IfGilman really had reached Station 4 in just 5 to 10 minutes, thatwould indeed have put her in a position to observe the sleepingemployees at Station 4 at (or before) 4:00 a.m. -- just asNovato’s brief claimed. And if we further assume the accuracyof the 4:21 a.m. timestamp on the photograph Gilman took thelast time she saw them sleeping, that would establish that at least

Q. Eggs and grits. I like grits too. How do you cook yourgrits? You like ‘em regular, creamy, or al dente?A. Just regular, I guess.Q. Regular. Instant grits?A. No self-respecting Southerner uses instant grits. I takepride in my grits.Q. So, Mr. Tipton, how could it take you five minutes to cookyour grits, when it takes the entire grit-eating world twentyminutes?A. I don’t know. I’m a fast cook I guess.Q. I’m sorry . . . . Are we to believe that boiling water soaksinto a grit faster in your kitchen than on any place on the faceof the earth?A. I don’t know.Q. Well, perhaps the laws of physics cease to exist on yourstove? Were these magic grits? . . . Q. Are you sure about that five minutes? . . . A. I may have been mistaken.

American Rhetoric: Movie Speech, “My Cousin Vinny (1992),”https://www.americanrhetoric.com/MovieSpeeches/moviespeechmycousinvinny3.html (video clip).

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the two employees in the photo had been sleeping for at least 20minutes -- again, just as Novato claimed.

The problem with this timeline is the sheer number of tasksGilman claimed to have completed between stopping at the stopsign at 3:50 a.m. and arriving at Station 4 just 5 to 10 minuteslater. During NLRB counsel’s cross-examination of Gilman,counsel drew out the following list of activities Gilman said shehad completed during that period:

- driven three more blocks to the Novato facility,stopping at another stop sign along the way;

- parked her car and went into the facility;

- walked to her office, where she logged on to hercomputer and checked her emails;

- walked to the facility’s kitchen, where she checkedthe temperature logs for a refrigerator, for a walk-inrefrigerator, and for a walk-in freezer; and checked thelabels and dates of the items in the refrigerators;6

- walked to and through the break room, where sheused the restroom and then collected Novato union-opposition campaign flyers, on which someone hadwritten “derogatory stuff”;

- gone back to her office and read the flyers;

- walked down the hallway toward Station 4, peekingin rooms along the way; and

During her direct examination, Gilman testified that she had6

also opened the oven doors, inspected the stove, and tidied up. SeeJ.A. 427 (Gilman Test.).

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- arrived at Station 4 for the first time, where she sawthe sleeping employees.

See Gilman Test. Tr. 804-15 (cross-examination by MartaNovoa, NLRB attorney).

When the union’s attorney took up the tag-team matchduring her own shot at cross-examination, she hammered thepoint home:

Q. So it’s your testimony that it only took [10] minutesto drive from the 7-Eleven [near the first stop sign],park, to go into your office, to log onto your computer,to check your email, go to the bathroom, use therestroom, cleanup the break room a little bit of theseflyers, and go through all the procedures that [you]went through . . . in your kitchen.

A. . . . [S]o roughly I would still say about five -- itwasn’t that long, you know. It wasn’t that long. . . .

Q. So I’m trying to figure out from that time, driving,going through another stop sign, parking, getting in,unlocking your door, putting everything down,everything you did between there and when you firstsaw people sleeping, are you sure it was only tenminutes or less? Or could it have been 15 or 20minutes?

A. No, it could not have been 15 or 20 minutes . . . .

Q. Isn’t it true you’re just not sure how long it took youto get from the stop sign to [] Station 4 . . . ?

A. Well, to me it seemed like everything that I wasdoing, it seemed like about 10 minutes had passed.

Q. But you never looked at a clock to make sure that’scorrect?

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A. Correct.

J.A. 490-92 (cross-examination by Heather Conger, unionattorney).

In light of the sheer “number of functions” Gilman “claimedto perform[,] . . . all within a very short time period,” the ALJregarded her testimony as “simply . . . implausible.” 365N.L.R.B. No. 137, at 5. Moreover, Gilman’s testimony abouthow long the tasks had taken in the aggregate was rendered evenmore implausible by counsel’s further cross-examination abouthow long some of them had taken individually. In response tocounsel’s questions, Gilman testified that: “from the stop sign to[the facility] that’s three or four minutes”; “[i]t takes three tofour minutes to log onto my computer”; “[w]hat I did in mykitchen took a few minutes”; “I went over to the break room,[which] took three or four minutes”; and then “I left and wentback to my office [put down the flyers, and looked at themagain] just briefly.” J.A. 490-91 (Gilman Test.); Gilman Test.Tr. 814-15. By Gilman’s own account, then, those activitiesalone took about 15 minutes. Given the additional,unaccounted-for activities that Gilman also had to complete, theALJ reasonably concluded that Gilman’s aggregate timeestimate was “unlikely and unbelievable due to the length oftime she allocated to each task she completed” before firstencountering the sleeping employees. 365 N.L.R.B. No. 137, at11 n.25.

Nor was Gilman’s implausible timeline testimony the onlyproblem the ALJ had with her credibility. So, too, was Gilman’sfailure to photograph the other two employees who, she claimed,were also asleep at the same time at the same nursing station. So, too, was her failure to attempt to wake any of the fouremployees, or to seek immediate assistance from othersupervisors, despite Novato’s contention that the employees hadto be fired because they had put patients dangerously at risk by

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sleeping on the job. See id. at 5. So, too, was her assertion thatshe did not know the four were union adherents because she didnot notice that they all wore pro-union lanyards and buttons --despite her claim that she could “recall significant details onhow the employees slept” because she got within “arm’s reach”of them. Id. at 5, 11. And so, too, was Gilman’s denial that sheherself wore an anti-union lanyard that morning, a denial shelater had to withdraw. Id. at 5, 8 (admitting that she, along withother supervisors, wore lanyards urging employees, in capitalletters, to “KEEP YOUR VOICE VOTE NO”).

In the end, the ALJ simply could “not find [Gilman’s]testimony credible and reject[ed] her version of eventscompletely.” Id. at 5. The Board saw “no basis for reversing”that finding, see id. at 1 n.1, and neither do we. Novato proffersno other evidence that Brown and Sabelino were sleeping longerthan their permitted break times and no other evidence thatMetellus and Bernales were sleeping at all. Given the absenceof such evidence, combined with the contrary testimony that theALJ reasonably credited, we find nothing unreasonable in theBoard’s conclusion that Novato failed to meet its burden ofshowing it would have fired the four employees notwithstandingits anti-union animus.

III

Novato also disputes the Board’s determination that it firedRodriguez, the Station 1 employee, in violation of Section8(a)(1) and (3) of the NLRA. Novato emphasizes the “total lackof evidence” that Rodriguez did not sleep or that she was aunion supporter. Novato Br. 21. This argument fails becausethe Board did not rely on such evidence to conclude that Novatocommitted an unfair labor practice by firing Rodriguez. Rather,the ALJ found, and the Board affirmed, that Novato violated theAct by using Rodriguez as a “pawn in an unlawful design.” 365

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N.L.R.B. No. 137, at 18 (quoting Corliss Res., Inc., 362N.L.R.B. No. 21, at 4 (2015)).

Although Rodriguez’s union views were unknown, the ALJconcluded that Novato fired her along with the Station 4employees “for fear of diluting its argument against the otherdiscriminatees” and to “‘cover’ its unlawful suspension andtermination of the other 4 employees.” Id. As the Board haslong held, “an employer’s discharge of uncommitted, neutral, orinactive employees in order to ‘cover’ or to facilitatediscriminatory conduct against a targeted union-supportingemployee or to discourage employee support for the union isviolative of Section 8(a)(3) of the Act.” Dawson CarbideIndus., Inc., 273 N.L.R.B. 382, 389 (1984); see Metro-WestAmbulance Servs., Inc., 360 N.L.R.B. 1029, 1056 (2014); BayCorrugated Container, Inc., 310 N.L.R.B. 450, 451 (1993); seealso Alpo Petfoods, Inc. v. NLRB, 126 F.3d 246, 255-56 (4th Cir.1997).

Here, substantial evidence supports the Board’s conclusionthat Rodriguez was discharged alongside the Station 4employees in order to provide cover for Novato’s discriminatoryconduct toward those union supporters. The email fromNovato’s outside counsel to administrator Treude all butadmitted as much. Counsel acknowledged that Rodriguez was“a bit of a different story” from the other four because her“Charge Nurse appears to have tolerated her sleeping.” Emailfrom Albert to Treude, et al. (Oct. 10, 2015) (J.A. 529). Nonetheless, he suggested that Treude fire her to avoid“dilut[ing] [Novato’s] arguments with the other 4.” Id. And asthe ALJ noted, “[d]espite claiming that he did not read [the]email recommendations, Treude exactly followed [the] advice.” 365 N.L.R.B. No. 137, at 18; see id. at 13 n.39.

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IV

Finally, Novato challenges the Board’s finding thatsupervisor Gay Rocha unlawfully interrogated employeeNarvius Metellus in violation of Section 8(a)(1) of the NLRA.

On Sunday, October 4, 2015, ten days before the election,Rocha “came into the facility early as part of [Novato’s]opposition campaign.” 365 N.L.R.B. No. 137, at 9 (ALJ Op.). Metellus testified that Rocha came up to him while he wasstanding near a vending machine and asked “how he planned tovote in the upcoming union election.” Id. When Metellus saidhe planned to vote in favor of the union, Rocha told him thatdoing so would have implications for his pay and that the unioncould possibly take part of his paycheck. Id.7

“The questioning of an employee about union activities orsympathies constitutes unlawful interrogation ‘if, under all thecircumstances, it reasonably tends to restrain, coerce, orinterfere with rights guaranteed by the Act.’” Shamrock Foods,346 F.3d at 1137 (quoting Perdue Farms, Inc. v. NLRB, 144F.3d 830, 835 (D.C. Cir. 1998)). In examining the totality of thecircumstances, the Board considers such factors as: the natureof the information sought; the seniority of the questioner in theemployer’s hierarchy; the place and manner of the conversation,including whether it took place during a disputed unioncampaign and whether the employee was alone; the truthfulnessof the employee’s reply; and whether the questioner offered anylegitimate purpose for his question or assurance against reprisal.

In Rocha’s testimony before the ALJ, she denied speaking to7

Metellus about his position regarding the union. The ALJ found that“Rocha cannot be believed” and credited Metellus’s version of events. 365 N.L.R.B. No. 137, at 9. Before this court, Novato does notdispute Metellus’s recounting of his interaction with Rocha.

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See, e.g., Shamrock Foods, 346 F.3d at 1137; Perdue Farms,144 F.3d at 835-36; Rossmore House, 269 N.L.R.B. 1176, 1178n.20 (1984) (citing Bourne v. NLRB, 332 F.2d 47 (2d Cir.1964)). The test is an objective one; proof of actual coercion isnot required. See United Servs. Auto. Ass’n v. NLRB, 387 F.3d908, 913 (D.C. Cir. 2004).

In this case, the ALJ found that Rocha’s questioning aboutMetellus’s union views “would have a reasonable tendency tointerfere with an employee’s Section 7 rights.” 365 N.L.R.B.No. 137, at 15; see supra note 3 (quoting Section 7, 29 U.S.C.§ 157). Among the factors the judge cited for this conclusionwere: Rocha questioned Metellus ten days before therepresentation election; “Metellus recognized Rocha as asupervisor at the facility”; Novato “ran an obvious unionopposition campaign around this time period”; and “Rochaoffered no explanation for her question nor did she provideassurances against reprisal to Metellus.” 365 N.L.R.B. No. 137,at 15. In affirming the ALJ’s finding, the Board added that“questions like Rocha’s -- going specifically to how anemployee himself intends to vote -- have a uniquely coercivetendency,” and that “Rocha’s position as a high-levelmanagement official with no regular working relationship withMetellus compounded the coercive tendency of her question.” Id. at 2. Moreover, “Rocha’s subsequent comments that votingfor the Union would have implications on Metellus’s pay andthat the Union could possibly take part of his paycheck clearlycommunicated [Novato’s] preference that Metellus should voteagainst representation.” Id.

“Recognizing the Board’s ‘competence in the first instanceto judge the impact of utterances made in the context of theemployer-employee relationship,’” Shamrock Foods, 346 F.3dat 1137 (citations omitted), we uphold as reasonable itsconclusion that Rocha’s questioning was sufficiently coercive to

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violate the Act. As noted above, the factors cited by the Boardare among those upon which it has traditionally relied andsupport the conclusion here that the interrogation “reasonablytend[ed] to restrain, coerce, or interfere with rights guaranteedby the Act.” Id. (citation omitted).

Novato further maintains that the Board’s finding of anunlawful interrogation violates Novato’s free-speech rightsunder the First Amendment and Section 8(c) of the NLRA. See29 U.S.C. § 158(c) (“The expressing of any views . . . shall notconstitute or be evidence of an unfair labor practice . . . if suchexpression contains no threat of reprisal or force or promise ofbenefit.”). Rocha, it insists, simply exercised Novato’s FirstAmendment rights in asking how Metellus planned to vote andmerely spoke the truth when she informed him that the unioncould deduct dues from his paychecks. Novato Br. 25-26.

Novato concedes that it did not raise this objection beforethe Board and that Section 10(e) of the NLRA deprives thiscourt of jurisdiction to hear any “objection that has not beenurged before the Board,” barring “extraordinary circumstances.” 29 U.S.C. § 160(e). Novato proffers no circumstances,“extraordinary” or otherwise, to excuse its forfeiture. Instead,it insists that free-speech arguments cannot be forfeited and thatSection 10(e) simply does not apply to First Amendmentarguments. Oral Arg. 7:50; Reply Br. 12-13.

The text of Section 10(e) makes no exception forfree-speech objections, whether grounded in the FirstAmendment or Section 8(c). Nor do this circuit’s decisions. See Ampersand Publ’g, LLC v. NLRB, No. 15-1074, 2017 WL1314946, at *2 (D.C. Cir. Mar. 3, 2017) (holding that the “courtlacks jurisdiction to consider Ampersand’s broad FirstAmendment argument” because of Section 10(e)’s jurisdictionalbar); Progressive Elec., Inc. v. NLRB, 453 F.3d 538, 545 (D.C.

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Cir. 2006) (declining to hear an employer’s Section 8(c)argument because it had “not been raised before the Board”). Nor has Novato cited a single case to support its position. Accordingly, we do not consider this objection.

V

For the foregoing reasons, we deny Novato’s petition forreview and grant the Board’s cross-application for enforcement.

So ordered.